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Battle continues over contraceptive mandate

Bob Smietana, USA TODAY
8:13 a.m. EST January 10, 2013

More than 100 people from the Belleville, Ill., Diocese marched on March 13, 2012, as part of a nationwide protest of the federal mandate that requires private health care plans to provide coverage of contraceptive and other items that go against the Catholic religion.(Photo: Derik Holtmann, AP)

Story Highlights

Nashville suit is one of 43 nationwide challenging the Obama administration mandate

Government says new rules for faith-based groups coming this year

NASHVILLE, Tenn. -- The Catholic Diocese of Nashville and other dioceses nationwide are continuing their legal battle with the Obama administration over the contraceptive mandate for employers.

The Nashville Diocese and seven other area Catholic groups sued over the mandate in September. They say the mandate violates their religious freedom because the church teaches that contraception is immoral.

A U.S. district court judge dismissed the lawsuit in November. The groups recently appealed, based on favorable court rulings in other states.

"We don't object to the availability of birth control," said Rick Musacchio, spokesman for the diocese. "We do object to having to pay for it."

The Nashville lawsuit is one of 43 nationwide that include more than 100 plaintiffs, according to the Washington, D.C.-based Becket Fund for Religious Liberty.

Courts have ruled in favor of 10 of the 13 for-profit companies that sued, seeking preliminary injunctions or temporary restraining orders against the mandate.

Non-profits haven't fared as well. The Catholic dioceses in Nashville and Pittsburgh along with several religious colleges, including Notre Dame, have lost in district court.

That is, in part, because the courts have ruled that the lawsuits are premature. Most religious nonprofits don't have to provide contraception until 2014, thanks to a one-year safe harbor provision in the mandate. The courts have ruled that the mandate has not harmed them yet.

The safe harbor doesn't apply to for-profit companies, which gives their lawsuits more urgency.

In the Nashville case, the Diocese of Nashville, Father Ryan High School, Pope John Paul II High School, Catholic Charities and Aquinas College qualified for the safe harbor.

But three other Catholic nonprofits, Mary Queen of Angels, Villa Maria Manor and St. Mary Villa did not, said Musacchio. They had to buy insurance plans for 2013 that included contraception, according to court documents.

That was a mistake on the part of their insurance company, ruled U.S. District Court Judge Todd Campbell. The policies have been modified to remove contraception.

At issue, in the lawsuits, is who qualified for a permanent exemption from the mandate and who did not.

According to rules proposed by the Obama administration in 2012, most churches would be exempt because they employ people that share their beliefs and serve people who share their beliefs.

Other nonprofits, like Catholic Charities, would not be exempt.

That's a problem, said Musacchio, because those groups are motivated by faith.

"We provide services because we are Catholic, not because our recipients are Catholic. Under that description, Christ himself would not qualify," he said.

Under current law, the safe harbor would expire at the end of the year, said Emily Hardman, communications director for the Becket Fund. Groups that don't comply with the law for religious reasons face fines.

The government has said it plans to issue new rules for faith-based groups this year.

Hardman said that the aim of the suits is to make sure those rules provide adequate protection for religious beliefs.

"What we are asking for is to have the conscience of every American protected," she said.

Supporters of the mandate say that it is constitutional. They say employees should decide whether to use contraception or other health services, not their employers.

Faith-based groups still have to follow the law, said Hedy Weinberg, executive director of the American Civil Liberties Union in Tennessee

"Religiously affiliated employers have to treat their employees fairly," Weinberg said. "It is not about religious liberty. It is about ensuring that women employees are treated fairly and that women have access to a full range of health care services."

Weinberg said that the federal Equal Employment Opportunity Commission has ruled that if an employer-provided health plan covers prescriptions, it has to include birth control.

According to the EEOC, refusing to provide birth control is sex discrimination, said Weinberg.

"Real religious freedom gives everyone the right to make their own decision," she said.

Musacchio said that employees are free to choose to use contraception and can pay for it on their own. If they can't afford birth control, they would likely qualify for free contraception.

The diocese is hopeful its appeal will succeed. That's in part because a district court in New York has ruled that the diocese there does face possible harm from the mandate even if it has not been enforced yet. And an appeals court in Washington, D.C., has ordered the federal government to issue new rules for religious groups as soon as possible.